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The White House is considering executive measures that would limit the ability of immigrants to seek asylum at the U.S.-Mexico border if they enter the country illegally, a move reminiscent of controversial actions from the Donald Trump era and It is sure to provoke a fierce backlash from advocates and progressives.
The handling of the U.S.-Mexico border has long vexed President Joe Biden, as immigration in the Western Hemisphere reaches record levels and thousands of migrants arrive at the border.
The measures being considered by the White House appear to be an extension of some of the toughest measures in the Republican-engineered border compromise bill, as the White House seeks to show aggressiveness on border security ahead of Election Day. This is another manifestation of our efforts.
No final decision has yet been taken on the measures under consideration. The measures include using authorities known as 212Fs between ports of entry to crack down on illegal border crossings. One administration official noted that the administration often evaluates possible actions, but does not necessarily move forward.
It is unclear how the declaration under discussion will be enforced or how it will differ from the one enacted during the Trump administration.
The Justice Department's Office of Legal Counsel is reviewing the proposed executive order to determine whether it can withstand legal challenges, according to people briefed on the matter. But some law enforcement officials say the proposed changes, aimed at addressing past court rulings against Trump-era executive orders, are certain to follow the Biden administration's move to use executive action. They have expressed doubts as to whether they will be able to withstand the
A White House spokesperson did not comment on the measures being considered.
“The administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades,” the White House spokesperson said. “We need significant policy reforms and additional funding from Congress to fix the system.” Angelo Fernández Hernández said in a statement.
“No amount of aggressive executive action can deliver the significant policy reforms that Congress can provide or the additional resources that Republicans have rejected. We urge Speaker Johnson and House Republicans to secure the border. We will continue to push for a bipartisan agreement to be passed.”
Biden signaled earlier this month that he would close the U.S.-Mexico border if his proposed border bill is signed into law, effectively adopting one of the toughest measures in the package. I will do it.
“If this bill were to become law today, we would be eligible for immediate closure while repairs are made,” Biden said.
While in office, President Trump invoked immigration law provisions to close the U.S. southern border to asylum seekers who crossed the border illegally, but was blocked by the courts.
In 2018, President Trump attempted to use 212F, which gives the president broad authority to implement immigration restrictions to restrict border crossings. Ultimately, however, a federal appeals court ruled that this power conflicted with asylum law and that the 212F power did not override it.
The case, known as East Bay Sanctuary Covenant v. Trump, served as an example of why the president's ability to close the border is limited. If the White House moves forward with this plan, it will likely face legal challenges.
“President Biden has broad authority under immigration law, but it is not unlimited. Section 212(f) of the Immigration and Nationality Act allows the president to suspend the entry of noncitizens who are 'detrimental to the interests of the United States.' But that doesn't mean we can close the border to everyone,” Stevens immigration law expert Yale Rohr previously told CNN.
Facing a decline in border security funding, administration officials are also discussing whether declaring a national emergency could boost funding, two people familiar with the matter said. The White House's additional request includes $14 billion for border security, but it remains stalled in Congress.
The Biden administration is taking other steps to strengthen asylum at the U.S.-Mexico border. Last year, the administration announced regulations that would all but ban migrants who transit through other countries on their way to the U.S. southern border from seeking asylum in the U.S., marking a departure from decades of practice.
At the time, administration officials rejected comparisons to the Trump administration, saying there was no categorical ban on asylum and emphasizing efforts to expand legal access to the United States.
Immigration fears were down 50% in January compared to December, according to federal data. Homeland Security officials blamed the decline on a doubling of enforcement efforts due to high-level talks between the U.S. and Mexico, but encounters have historically declined in January before rising again. They warn that it will increase.
In a statement this month, Troy Miller, the acting commissioner of U.S. Customs and Border Protection, acknowledged that the agency continues to face obstacles at the border. We continue to face this,” he said.
In January, the U.S. Border Patrol reported 124,220 encounters along the U.S.-Mexico border. Of note was the significant decrease in Venezuelans, nearly 11,600 compared to 57,851 in December. Both the United States and Mexico have resumed deportation flights to Venezuela.
This story has been updated with additional information.
CNN's Evan Perez contributed to this report.
